Onyx Leasing Systems, Inc. v. Stevens, 2012 N.J. Super. Unpubl. LEXIS 2830 (App. Div. Dec. 28, 2012).  Amercement is a cause of action that, according to the per curiam opinion in this unpublished decision of the Appellate Division today, has existed in New Jersey since 1792, and is now governed by a statute, N.J.S.A. 40A:9-109.  Amercement requires a Sheriff to pay damages if the Sheriff “fails to perform any duty imposed upon him by law in respect to writs of execution resulting in loss or damage to the judgment creditor.”  This amercement opinion actually involved two cases that presented the same issues and were calendared back-to-back.  Though there is nothing special about the facts or law in this case, which is why the opinion is not for publication, it does present the relatively little-known concept of amercement. 

Plaintiffs in both cases got money judgments against the respective defendants and obtained writs of execution.  They forwarded those writs to the Sheriff of Middlesex County and asked the Sheriff to levy on automobiles allegedly owned by each defendant.  The Sheriff reported back that service had been ineffective because no vehicles were present when the Sheriff attempted to levy.  Plaintiffs complained that the Sheriff had not accomplished a constructive levy by “posting the premises” and sending a form to the Motor Vehicle Commission (“MVC”) that would enable the MVC to “issue an appropriate stop on the title.” 

When the Sheriff had not acted to plaintiffs’ satisfaction several weeks later, plaintiffs filed ex parte motions for amercement that also sought to compel the Sheriff to file the necesary forms with the MVC.  The Sheriff objected that these were not proper actions for amercement, that plaintiffs had not been damaged, as required by the amercement statute, and that plaintiffs’ demand that the Sheriff be required to take an action meant that the action should have been filed in the form of an action in lieu of prerogative writ.  The Sheriff sought oral argument on plaintiffs’ motions, but the Law Division acted without hearing argument and quickly ruled for plaintiffs.  The Law Division even ordered the MVC, a non-party, to process the levies.  The Sheriff appealed, and the Appellate Division reversed.

The Appellate Division agreed with the Sheriff that “the essential relief sought was in the nature of mandamus,” that is, plaintiffs’ effort to compel the Sheriff to submit the forms to the MVC.  Thus, the case should have been filed as an action in lieu of prerogative writ, and the Sheriff should have had the right to discovery, as is permitted prerogative writ cases.  The Law Division erred in compelling the MVC to process the levies since the MVC was not even a party.  Moreover, the panel noted that the Law Division had wrongly denied oral argument since the Sheriff had requested it and was therefore entitled to it under Rule 1:6-2.

The panel also agreed with the Sheriff that since plaintiffs had not shown any damage, they had no valid claim for amercement.  The Appellate Division observed that the form of order that plaintiffs submitted and that the judge had signed itself had expressly stated that “no damages have been incurred … as a result of the failure to locate the chattels identified in the Writ of Execution.”  Finally, the court recognized that there was some question as to whether the proper vehicle for amercement was a motion or a summary action.  But the court did not need to resolve that issue.